§37-13A-1. Access of certain persons to
cemeteries and graves located on private land.

For the purposes set forth in section two of this
article, the state recognizes that the owners of private land on
which a cemetery or graves are located have a duty to allow
ingress and egress to the cemetery or graves by family members,
close friends and descendants of deceased persons buried there,
by any cemetery plot owner, or by any person engaging in
genealogy research who has given reasonable notice to the owner
of record or to the occupant of the property or to both the owner
and occupant. The access route may be
designated by the landowner if no traditional access route is
obviously visible by a view of the property.

No improvement, construction or development shall
commence upon privately owned lands on which a cemetery
or graves are located if such improvement, construction
or development would destroy or otherwise physically
disturb the cemetery or graves located on the land unless
the owner first files a petition in accordance with the
provisions of section two of this article and an order is
entered pursuant to section five of this article
providing for the disposition of the remains

§37-13A-2. Purposes for which access is
allowed.The right of ingress and egress granted to persons
specified in section one of this article shall be limited to the
purposes of: (1) Visiting graves; (2) maintaining the grave site
or cemetery; (3) burying a deceased person in a cemetery plot by
those granted rights of burial to that plot; and (4) conducting
genealogy research.]

All persons exercising access to a grave site
or cemetery under the provisions of this article are responsible
for conducting themselves in a manner that does not damage the
private lands, the cemetery or grave sites and are liable to the
owner of the private lands for any damage caused as a result of
their access.

§37-13A-5. Cause of action for injunctive relief.Any person denied reasonable access under the provisions
of this section, including the denial of permission to use
vehicular access, may institute a proceeding in the circuit court
of the county in which the cemetery or grave site is located to
enjoin the owner of the private lands on which the cemetery or
grave site is located, or his or her agent, from denying the
person reasonable ingress and egress to the cemetery or grave
site for the purposes set forth in section two of this article.
In granting such relief, the court may set the frequency of
access, hours and duration of the access.

(a) Legislative findings and purpose.
The Legislature finds that there is a real and growing threat to
the safety and sanctity of unmarked human graves in West Virginia
and the existing laws of the state do not provide equal or
adequate protection for all such graves. As evident by the
numerous incidents in West Virginia which have resulted in the
desecration of human remains and vandalism to grave markers,
there is an immediate need to protect the graves of earlier West
Virginians from such desecration. Therefore, the purpose of this
article is to assure that all human burials be accorded equal
treatment and respect for human dignity without reference to
ethnic origins, cultural backgrounds, or religious affiliations.
The Legislature also finds that those persons engaged in the
scientific study or recovery of artifacts which have been
acquired in accordance with the law are engaged in legitimate and
worthy scientific and educational activities. Therefore, this
legislation is intended to permit the appropriate pursuit of
those lawful activities.
Finally, this legislation is not intended to interfere with the
normal activities of private property owners, farmers, or those
engaged in the development, mining or improvement of real
property.
(b) Definitions.
For the purposes of this section:
(1) "Human skeletal remains" means the bones, teeth,
hair or tissue of a deceased human body;
(2) "Unmarked grave" means any grave or location where
a human body or bodies have been buried or deposited for at least
fifty years and the grave or location is not in a publicly or
privately maintained cemetery or in the care of a cemetery
association, or is located within such cemetery or in such care
and is not commonly marked;
(3) "Grave artifact" means any items of human
manufacture or use that are associated with the human skeletal
remains in a grave;
(4) "Grave marker" means any tomb, monument, stone,
ornament, mound, or other item of human manufacture that is
associated with a grave;
(5) "Person" includes the federal and state governments
and any political subdivision of this state;
(6) "Disturb" means the excavating, removing, exposing,
defacing, mutilating, destroying, molesting, or desecrating in
any way of human skeletal remains, unmarked graves, grave
artifacts or grave markers;
(7) "Native American tribe" means any Indian tribe,
band, nation, or organized group or community which is recognized
as eligible for the special programs and services provided by the
United States to Indians because of their status as Indians;
(8) "Cultural affiliation" means the relationship of
shared group identity which can be reasonably traced historically
or prehistorically between a present day group and an
identifiable earlier group;
(9) "Lineal descendants" means any individuals tracing
his or her ancestry directly or by proven kinship; and
(10) "Proven kinship" means the relationship among
people that exists because of genetic descent, which includes
racial descent.
(c) Acts prohibited; penalties.
(1) No person may excavate, remove, destroy, or otherwise disturb
any historic or prehistoric ruins, burial grounds, archaeological
site, or human skeletal remains, unmarked grave, grave artifact
or grave marker of historical significance unless such person has
a valid permit issued to him or her by the director of the
historic preservation section: Provided,That
the supervising archaeologist of an archaeological
investigationbeing undertaken in compliance with the federal
Archaeological Resources Protection Act (Public Law 96-95 at 16
USC 470(aa)) and regulations promulgated thereunder shall not be
required to obtain such permit, but shall notify the director of
the historic preservation section that such investigation is
being undertaken and file reports as are required of persons
issued a permit under this section: Provided, however,That projects being undertaken in compliance with
section 106 of the National Historic Preservation Act of 1966, as
amended, or subsection (a), section five of this article shall
not be required to obtain such permit for excavation, removal,
destruction or disturbance of historic or prehistoric ruins or
archaeological sites.
A person who, either by himself or through an agent,
intentionally excavates, removes, destroys or otherwise disturbs
any historic or prehistoric ruins, burial grounds or
archaeological site, or unmarked grave, grave artifact or grave
marker of historical significance without first having been
issued a valid permit by the director of the historic
preservation section, or who fails to comply with the terms and
conditions of such permit, is guilty of a misdemeanor, and, upon
conviction, shall be fined not less than one hundred dollars nor
more than five hundred dollars, and may be imprisoned in the
county jail for not less than ten days nor more than six months
or both fined and imprisoned.
A person who, either by himself or through an agent,
intentionally excavates, removes, destroys or otherwise disturbs
human skeletal remains of historical significance without first
having been issued a valid permit by the director of the historic
preservation section, or who fails to comply with the terms and
conditions relating to disinterment or displacement of human
skeletal remains of such permit, is guilty of the felony of
disinterment or displacement of a dead human body or parts
thereof under section fourteen, article eight, chapter sixty-one
of this code and, upon conviction, shall be confined in the state
penitentiary not less than two nor more than five years.
A person who intentionally withholds information about the
excavation, removal, destruction, or other disturbance of any
historic or prehistoric ruins, burial grounds, archaeological
site, or human skeletal remains, unmarked grave, grave artifact
or grave marker of historical significance is guilty of a
misdemeanor and, upon conviction, shall be fined not more than
one hundred dollars, and may be imprisoned in the county jail not
more than ten days.
(2) No person may offer for sale or exchange any human skeletal
remains, grave artifact or grave marker obtained in violation of
this section.
A person who, either by himself or through an agent, offers for
sale or exchange any human skeletal remains, grave artifact or
grave marker obtained in violation of this section is guilty of a
misdemeanor and, upon conviction, shall be fined not less than
one thousand dollars nor more than five thousand dollars, and may
be imprisoned in the county jail not less than six months nor
more than one year.
(3) Each instance of excavation, removal, destruction,
disturbance or offering for sale or exchange under (1) and (2) of
this subsection shall constitute a separate offense.
(d) Notification of discovery of human skeletal remains in
unmarked locations.
Within forty-eight hours of the discovery of human skeletal
remains, grave artifact or grave marker in an unmarked grave on
any publicly or privately owned property, the person making such
discovery shall notify the county sheriff of the discovery and
its location. If the human remains, grave artifact or grave
marker appear to be from an unmarked grave, the sheriff shall
promptly, and prior to any further disturbance or removal of the
remains, notify the director of the historic preservation
section. The director shall cause an on-site inspection of the
disturbance to be made to determine the potential for
archaeological significance of the site: Provided,That when the discovery is made by an archaeological
investigation permittedunder state or federal law, the
supervising archaeologist shall notify the director of the
historic preservation section directly.
If the director of the historic preservation section determines
that the site has no archaeological significance, the removal,
transfer and disposition of the remains shall be subject to the
provisions of article thirteen, chapter thirty-seven of this
code, and the director shall notify the circuit court of the
county wherein the site is located.
If the director of historic preservation determines that the site
has a potential for archaeological significance, the director
shall take such action as is reasonable, necessary and prudent,
including consultation with appropriate private or public
organizations, to preserve and advance the culture of the state
in accordance with the powers and duties granted to the director,
including the issuance of a permit for the archaeological
excavation or removal of the remains. If the director determines
that the issuance of a permit for the archaeological excavation
or removal of the remains is not reasonable, necessary or
prudent, the director shall provide written reasons to the
applicant for not issuing the permit.
(e) Issuance of permits.
Prior to the issuance of a permit for the disturbance of human
skeletal remains, grave artifacts, or grave markers, the director
of historic preservation shall convene and chair an ad hoc
committee to develop permit conditions. The committee shall be
comprised of the chair and six or eight members representing
known or presumed lineal descendants, private and public
organizations which have cultural affiliation to the presumed
contents of the site, the Council for West Virginia Archaeology
and the West Virginia Archaeological Society. In the case of
Native American sites, the membership of the committee shall be
comprised of the chair and six or eight members representing the
Council for West Virginia Archaeology, the West Virginia
Archaeological Society, and known or presumed lineal descendants,
preferably with cultural affiliation to tribes that existed in
the geographic area that is now West Virginia.
In the case of a site of less then five acres, which is owned by
an individual or partnership, the ad hoc committee must be formed
within thirty days of application for same by the property owner,
must meet within sixty days of such application, and must render
a decision within ninety days of such application.
All such permits shall at a minimum address the following
conditions: (1) The methods by which lineal descendants of the
deceased are notified prior to the disturbance; (2) the
respectful manner in which the remains, artifacts or markers are
to be removed and handled; (3) scientific analysis of the
remains, artifacts or markers and the duration of those studies;
(4) the way in which the remains may be reburied in consultation
with any lineal descendants, when available; (5) methods for the
respectful curation of recovered items; and (6) such other
conditions as the director may deem necessary. Expenses accrued
in meeting the permit conditions shall be borne by the permit
applicant, except in cases where the deceased descendants or
sponsors are willing to share or assume the costs. A permit to
disturb human skeletal remains, grave artifacts or grave markers
will be issued only after alternatives to disturbance and other
mitigative measures have been considered.
In addition, a person applying for a permit to excavate or remove
human skeletal remains, grave artifacts, grave markers, or any
historic or prehistoric features of archaeological significance
may provide to the ad hoc committee information he or she deems
appropriate and shall:
(1) Provide a detailed statement to the director of the historic
preservation section giving the reasons and objectives for
excavation or removal and the benefits expected to be obtained
from the contemplated work;
(2) Provide data and results of any excavation, study
orcollection in annual reports to the director of the historic
preservation section and submit a final report to the director
upon completion of the excavation;
(3) Obtain the prior written permission of the owner if the site
of such proposed excavation is on privately owned land; and
(4) Provide any additional information the ad hoc committee deems
necessary in developing the permit conditions.
Such permits shall be issued for a period of two years and may be
renewed at expiration. The permits are not transferable but other
persons who have not been issued a permit may work under the
direct supervision of the person holding the permit. The person
or persons to whom a permit was issued must carry the permit
while exercising the privileges granted and must be present at
the site whenever work is being done.
Notwithstanding any other penalties to which a person may be
subject under this section for failing to comply with the terms
and conditions of a permit, the permit of a person who violates
any of the provisions of this subsection shall be revoked.
As permits are issued, the director of the historic preservation
section shall maintain a catalogue of unmarked grave locations
throughout the state.
(f)Property tax exemption for unmarked grave sites.
To serve as an incentive for the protection of unmarked graves,
the owner, having evidence of the presence of unmarked graves on
his or her property, may apply to the director of the historic
preservation section for a determination as to whether such is
the case. Upon making such a determination in the affirmative,
the director of the historic preservation section shall provide
written certification to the landowner that the site containing
the graves is a cemetery and as such is exempt from property
taxation upon presentation of the certification to the county
assessor. The area of the site to receive property tax exempt
status shall be determined by the director of the historic
preservation section. Additionally, a property owner may
establish protective easements for the location of unmarked
graves.
(g)Additional provisions for enforcement; civil
penalties; rewards for information.
(1) The prosecuting attorney of the county in which a violation
of any provision of this section is alleged to have occurred may
be requested by the director of the historic preservation section
to initiate criminal prosecutions or to seek civil damages,
injunctive relief and any other appropriate relief. The director
of the historic preservation section shall cooperate with the
prosecuting attorney in resolving such allegations.
(2) Persons convicted of any prohibited act involving the
excavation, removal, destruction, disturbance or offering for
sale or exchange of historic or prehistoric ruins, burial
grounds, archaeological site, human skeletal remains, unmarked
grave, grave artifact or grave marker under the provisions of
subdivisions (1) and (2), subsection (c) of this section shall
also be liable for civil damages to be assessed by the
prosecuting attorney in consultation with the director of the
historic preservation section.
Civil damages may include:
(i) Forfeiture of any and all equipment used in disturbing the
protected unmarked graves or grave markers;
(ii) Any and all costs incurred in cleaning, restoring,
analyzing, accessioning and curating the recovered material;
(iii) Any and all costs associated with recovery of data, and
analyzing, publishing, accessioning and curating materials when
the prohibited activity is so extensive as to preclude the
restoration of the unmarked burials or grave markers;
(iv) Any and all costs associated with restoring the land to its
original contour or the grave marker to its original condition;
(v) Any and all costs associated with reinterment of the human
skeletal remains; and
(vi) Any and all costs associated with the determination and
collection of the civil damages.
When civil damages are recovered, the proceeds, less the costs of
the prosecuting attorney associated with the determination and
collection of such damages, shall be deposited into the
endangered historic properties fund and may be expended by the
commissioner of culture and history for archaeological programs
at the state level, including the payment of rewards for
information leading to the arrest and conviction of persons
violating the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(3) The commissioner of culture and history is authorized to
offer and pay rewards of up to one thousand dollars from funds on
deposit in the endangered historic properties fund for
information leading to the arrest and conviction of persons who
violate the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(h)Disposition of remains and artifacts not subject to
reburial.
All human skeletal remains and grave artifacts found in unmarked
graves on public or private land, and not subject to reburial,
under the provisions of subsection (e) of this section, are held
in trust for the people of West Virginia by the state and are
under the jurisdiction of the director of historic preservation.
All materials collected and not reburied through this section
shall be maintained with dignity and respect for the people of
the state under the care of the West Virginia state museum.

§54-1-2. Public uses for which private
property may be taken or damaged.

The public uses for which private property may be taken or
damaged are as follows:
(a) For the construction, maintenance and operation of railroad
and traction lines (including extension, lateral and branch
lines, spurs, switches and sidetracks), canals, public landings,
wharves, bridges, public roads, streets, alleys, parks and other
works of internal improvement, for the public use;
(b) For the construction and maintenance of telegraph, telephone,
electric light, heat and power plants, systems, lines,
transmission lines, conduits, stations (including branch, spur
and service lines), when for public use;
(c) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities for manufacturing gas and
for transporting petroleum oil, natural gas, manufactured gas,
and all mixtures and combinations thereof, by means of pipes,
pressure stations or otherwise, (including the construction and
operation of telephone and telegraph lines for the service of
such systems and plants), and for underground storage areas and
facilities, and the operation and maintenance thereof, for the
injection, storage and removal of natural gas in subterranean oil
and/or gas bearing stratum, which, as shown by previous
exploration of the stratum sought to be condemned and within the
limits of the reservoir proposed to be utilized for such
purposes, has ceased to produce or has been proved to be
nonproductive of oil and/or gas in substantial quantities, when
for public use, the extent of the area to be acquired for such
purpose to be determined by the court on the basis of reasonable
need therefor. Nothing in this subsection shall be construed to
interfere with the power of the state and its political
subdivisions to enact and enforce ordinances and regulations
deemed necessary to protect the lives and property of citizens
from the effects of explosions of oil or gas;
(d) For constructing, maintaining and operating, water plants and
systems, including lines for transporting water by any corporate
body politic, or private corporation, for supplying water to the
inhabitants of any city, town, village or community, for public
use, including lands for pump stations, reservoirs, cisterns,
storage dams, and other means of storing, purifying and
transporting water, and the right to take and damage lands which
may be flooded by the impounded waters, and to appropriate any
spring, stream and the surrounding property necessary to protect,
preserve and maintain the purity of any such spring, stream,
reservoir, cistern and water impounded by means of any storage
dam;
(e) For the purpose of constructing, maintaining and operating
sewer systems, lines and sewage disposal plants, to collect,
transport and dispose of sewage. When in the interest of the
public welfare and the preservation of the public health, the
construction of a sewer line to serve a single building or
institution shall be deemed a public use, and, for such purpose,
the right of eminent domain, if within a municipal corporation,
may be exercised in the name of a municipal corporation, and if
not within a municipal corporation, in the name of the county
court of the county in which the property is located;

(f) For the reasonable use by an incorporated
company engaged in a public enterprise of which the state or any
county or municipality is the sole or a part owner;

(g) For courthouses and municipal buildings,
parks, public playgrounds, the location of public monuments, and
all other public buildings;
(h) For cemeteries, and the extension and enlargement of existing
cemeteries: Provided, That no lands shall be taken for
cemetery purposes which lie within four hundred feet of a
dwelling house, unless to extend the boundaries of an existing
cemetery, and then only in such manner that the limits of the
existing cemetery shall not be extended nearer than four hundred
feet of any dwelling house distant four hundred feet or more from
such cemetery, or nearer than it was to any dwelling house which
is within four hundred feet thereof;
(i) For public schools, public libraries and public hospitals;
(j) For the construction and operation of booms (including
approaches, landings and ways necessary for such objects), when
for a public use;
(k) By the state of West Virginia for any and every other public
use, object and purpose not herein specifically mentioned. By the
United States of America for each and every legitimate public
use, need and purpose of the government of the United States,
within the purview, and subject to the provisions of chapter one
of this code;
(l) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities, for the transportation by
common carrier as a public utility of coal and its derivatives
and all mixtures and combinations thereof with any substance by
means of pipes, pressure stations or otherwise (including the
construction and operation of telephone and telegraph lines for
the service of such systems and plants), for public use: Provided,
That the common carrier engages in some intrastate activity in
this state, if there is any reasonable demand therefor: Provided,
however, That in addition to all other requisites by federal
or state constitutions, statute or common law required for the
taking of private property for public use, a further prerequisite
and condition precedent to the exercise of such taking of or
damage to private property for public use as in this subsection
hereinabove provided, is that the public service commission of
this state, in an appropriate hearing and proceeding on due
notice to all interested persons, firms or corporations, in
accordance with the procedure now or hereafter established by
statute and the regulations thereunder, shall have found that
such pipeline transportation of coal and its derivatives and all
mixtures and combinations thereof is required for the public
convenience and necessity, and that the public service commission
of this state shall not extend a certificate of convenience and
necessity or make such finding of public convenience and
necessity unless, in addition to the other facts required to
support such findings, it shall have been established by the
applicant therefor that the patents and other similar rights
under which the applicant proposes to construct, maintain or
operate such pipeline, plants, systems and storage facilities
shall be and shall remain equally available, insofar as said
subsequent applicant may determine such availability, upon fair
and reasonable terms, to other bona fide applicants seeking a
certificate of convenience and necessity and finding of fact for
any other pipeline in West Virginia; for the purpose of making
the findings hereinbefore set forth the public service commission
shall have and exercise jurisdiction, and that the aforesaid
findings in this proviso above set forth shall be subject to
judicial review as in other public service commission
proceedings.
It is the intention of the Legislature in amending this section
by the addition of subdivision (1) as set forth above to extend
the right of eminent domain to coal pipelines for public use; to
provide for regulation of such coal pipelines by the public
service commission of this state or the interstate commerce
commission of the United States of America, or both; to assure
that such rights shall be extended only to public utilities or
common carriers as distinguished from private carriers or
contract carriers; to make patents covering the same equally
available to others on fair and reasonable terms; and to prevent
monopolistic use of coal pipelines by any users thereof which
would result in any appreciable economic detriment to others
similarly situated by reasons of any such monopoly.

§35-5A-1. Definitions.

The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
shall have the following meanings:
(a) "Person" means any corporation, company,
partnership, individual, association or other entity owning or
operating a cemetery for the disposition of human remains.
(b) "Perpetual care cemetery" means a cemetery which
advertises or represents to the public in any manner that it
provides perpetual care or maintenance for burial grounds,
mausoleums or columbaria and the fixtures attached thereto or
which sells or offers to sell any interment right which is to be
perpetually cared for or maintained.
(c) "Interment" means the disposition of human remains
by earth burial, entombment or inurnment.
(d) "Burial right" means the right of earth interment.
(e) "Entombment right" means the right of entombment in
a mausoleum.
(f) "Columbarium right" means the right of inurnment in
a columbarium for cremated remains.
(g) "Permanent endowment care fund" means a fund held
in an irrevocable trust separate and apart from all other assets
of the cemetery and dedicated for the exclusive use of perpetual
care and maintenance of such cemetery.

§35-5-2. Sale of part of cemetery;
prohibitions.

The trustees of any burial grounds, or any
incorporated cemetery association whenever it
is deemed advisable by such trustees or association, and is not
prohibited by the terms of the conveyance, dedication or devise
of such grounds, may sell and convey any part of such burial
grounds or land of such association, without restriction as to
its use, if such sale and conveyance will not render any lot
previously sold for burial purposes inaccessible for such
purposes, or detach it from the main body of the cemetery. But no
such sale shall be made by such trustees or such association
unless authorized by a majority of the lot owners present and
voting at a general meeting or special meeting, of which meeting
and its object previous notice shall be given by advertising the
same as Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area for such publication shall be the county in
which the cemetery is situated. No desecration shall be made of
any grave or monument, or any of the walks, drives, trees, or
shrubbery within the enclosure of any burial grounds; nor shall
any shaft or entry be made within the enclosure of such burial
grounds, or any building be erected therein for any purpose
whatever other than cemetery purposes.

There is hereby authorized the creation of permanent
endowment funds for cemetery associations to be known as
"permanent endowment funds," the income from which is
to be annually spent by such cemetery associations, or their
successors, in beautifying and maintaining cemeteries owned or
controlled by such associations. The "permanent endowment
funds" are to be created by depositing in such funds all
permanent funds derived from all sources set apart by the board
of directors of such associations, and by donations, gifts and
bequests made to such cemetery associations for such purpose.

§35-5-4. Same -- How invested; report
of trustee; disposition of income.

The principal of such permanent endowment fund shall be
invested in some safe securities, to be approved by the board of
directors of such cemetery association, or its successors, in the
name of a trustee appointed as hereinafter provided. Such trustee
shall make an annual report to the board of directors of such
cemetery association showing the amount of the permanent
endowment fund at the beginning of each year, the names of the
donors, if any, and the amounts contributed by each during the
year in which the report is made, the income derived from such
fund during the year, and the amount on hand at the end of the
year; and a copy of such report shall be filed with the clerk of
the county court of the county in which such cemetery association
is located. The trustee during the year, or at the end thereof,
shall turn over to such cemetery association, or its successor,
all income derived from such permanent endowment fund during the
year, which shall be expended in accordance with this article.

§35-5A-3. Establishment of permanent
endowment care funds.

No person desiring to organize, develop and operate a
perpetual care cemetery in West Virginia after the first day of
July, one thousand nine hundred seventy-three, shall offer to
sell or sell any burial lot, burial right, entombment right or
columbarium right in such cemetery, without first establishing a
permanent endowment trust fund, segregated from all other assets,
and placing therein a minimum of ten thousand dollars in cash, or
in bonds of the United States government or of the state of West
Virginia.
Whenever any such person has placed an additional ten thousand
dollars in the permanent endowment care fund out of gross sales
proceeds or from any other source, such person after submitting
satisfactory proof of this fact to its trustee may withdraw the
original sum of ten thousand dollars from the permanent endowment
care fund.
No person operating an established perpetual care cemetery in
West Virginia on or before the first day of July, one thousand
nine hundred seventy-three, shall continue to operate such
cemetery without creating a permanent endowment fund and making
regular deposits to such fund as required in section four of this
article and entrusting the administration of such fund as
required in section five of this article.

§35-5A-5. Trustee of the permanent
endowment care funds.

The trustee of the permanent endowment care fund shall be a
federally insured trust company or a federally insured banking
institution with fiduciary powers authorized and qualified to
exercise trust powers under and subject to the provisions of
article four, chapter thirty-one-a of this code, or of the
corresponding law of another state. A nonresident federally
insured trust company or nonresident federally insured banking
institution so authorized and qualified may become a trustee of a
permanent endowment care fund notwithstanding the provision of
section seven, article eight-a, chapter thirty-one-a of this
code. When a nonresident trust company or nonresident banking
institution becomes a trustee of a permanent endowment care fund
for a perpetual care cemetery in this state, said nonresident
trust company or nonresident banking institution thereby
constitutes the secretary of state as its true and lawful
attorney-in-fact upon whom service of notice and process in any
action or proceeding against it as trustee, and acceptance of
such trust by said nonresident trust company or nonresident
banking institution shall be a manifestation of agreement that
any notice or process, which is served in the manner hereinafter
provided in this section, shall be of the same legal force and
validity as though such nonresident trust company or nonresident
banking institution was personally served with notice and process
within this state. Service of such notice and process and the
manner of acceptance of the same by the secretary of state shall
be in accordance with the provisions of section fifteen, article
one, chapter thirty-one of this code.
Any nonresident trust company or nonresident banking institution
appointed as trustee of a permanent endowment care fund shall
immediately upon acceptance of the trust give bond in accordance
with the provisions of section five, article five, chapter
thirty-five of this code.
The trustee shall invest such permanent endowment care funds for
the purpose of providing an income to be used for the
maintenance, improvement and preservation of the grounds, lots,
buildings, equipment, records, statuary, and other real and
personal property of the cemetery, and shall acquire, invest,
reinvest, exchange, retain, sell and manage all property now or
hereafter coming into such trustee's care or control.
The trustee shall exercise the judgment and care under the
circumstances then prevailing, which men of prudence, discretion
and intelligence, exercise in the management of their own
affairs, not in regard to speculation, but in regard to the
permanent disposition of their funds, considering the probable
income as well as the probable safety of their capital.
Within the limitations of the foregoing standard, any such
trustee is authorized to acquire and retain without any order of
any court, every kind of property, real, personal or mixed, and
every kind of investment, specifically including, but not by way
of limitation, bonds, debentures and other corporate obligations,
and stocks, preferred or common, which men of prudence,
discretion and intelligence acquire or retain for their own
account.
The trustee shall prepare an annual report of all of the assets
and investments of the permanent endowment care fund. One copy
shall be maintained at the office of the cemetery and shall be
available for inspection at reasonable times by owners of
interment rights in the cemetery.
The trustee shall pay over to the cemetery all income derived
from the permanent endowment care fund semiannually to be
expended only for the maintenance, improvement and preservation
of the grounds, lots, buildings, equipment, records, statuary and
other real and personal property of the cemetery.

§35-5A-6. Cemeteries exempted.

This article does
not apply to any private or family cemetery wherein lots or
spaces are not offered for public sale or to
any cemetery which is owned and operated entirely and exclusively
by churches, religious societies, established fraternal
organizations, municipalities or other subdivisions of the state
or a national cemetery

§35-5B-1. Definitions.

The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "Burial vault" means a protective container for a
casket which is used to prevent a grave from sinking.
(2) "Cemetery" means and includes all land and
appurtenances including roadways, office buildings, outbuildings
and other structures used or intended to be used for or in
connection with the interment of human remains. The sprinkling of
ashes or their burial in a biodegradable container on church
grounds or their placement in a columbarium on church property
does not constitute the creation of a cemetery.
(3) "Cemetery company" or "seller" means any
person, partnership, firm or corporation engaged in the business
of operating a cemetery or selling property, goods or services
used in connection with interring or disposing of the remains or
commemorating the memory of a deceased human being, where
delivery of the property or goods or performance of the service
may be delayed later than one hundred twenty days after receipt
of the initial payment on account of such sale. Such property,
goods or services include, but are not limited to, burial vaults,
mausoleum crypts, lawn crypts, memorials, marker bases and
opening and closing and/or interment services, but do not include
graves or incidental additions such as dates, scrolls or other
supplementary matter representing not more than ten percent of
the total contract price.
(4) "Commissioner" or "tax commissioner"
means the secretary of the West Virginia department of tax and
revenue.
(5) "Compliance agent" means a natural person who owns
or is employed by a cemetery company to assure the compliance of
the cemetery company with the provisions of this article.
(6) "Cost requirement" means the total cost to the
seller of the property, goods or services subject to the deposit
requirements of section four of this article required by that
seller's total contracts.
(7) "Delivery" means that the seller has transferred
physical possession of the identified goods, has attached or
installed such goods at the designated interment space or has
actually furnished preneed cemetery company contract services. In
the case of preneed goods which are identified with the name of
the buyer or other contract beneficiary, "delivery" may
also occur when: (A) The seller pays for and stores the goods at
the cemetery where they are intended to be used; or (B) the
seller has paid the supplier of such goods and the supplier has
caused such merchandise to be manufactured and stored, has caused
title to such merchandise to be transferred to the buyer or other
contract beneficiary and has agreed to ship such merchandise upon
his or her request.
(8) "Grave" means a below-ground right of interment.
(9) "Interment" means the disposition of human remains
by earth burial, entombment or inurnment.
(10) "Lawn crypt" means a burial receptacle, usually
constructed of reinforced concrete, installed underground in
quantity on gravel or tile underlay. Each crypt becomes an
integral part of the given garden area and is considered real
property.
(11) "Marker base" means the visible part of the base
or foundation upon which the memorial, marker or monument rests
and is considered personal property.
(12) "Mausoleum crypt" means a burial receptacle
usually constructed of reinforced concrete and usually
constructed or assembled above the ground and is considered real
property.
(13) "Memorials, markers or monuments" means the object
used to identify the deceased including the base and is
considered personal property.
(14) "Opening and closing or interment service" means
any service associated with the excavation and filling in of a
grave in a manner which will not disturb or invade adjacent grave
sites.
(15) "Preneed" means at any time other than either at
the time of death or while death is imminent.
(16) "Preneed cemetery company contract" means a
contract for the sale of real and personal property, goods or
services used in connection with interring or disposing of the
remains or commemorating the memory of a deceased human being,
where delivery of the property or performance of the service may
be delayed for more than one hundred twenty days after the
receipt of initial payment on account of such sale. Such
property, goods or services include, but are not limited to,
burial vaults, mausoleum crypts, lawn crypts, memorials, marker
bases and opening and closing and/or interment services, but do
not include graves or incidental additions such as dates, scrolls
or other supplementary matter representing not more than ten
percent of the total contract price.
(17) "Seller's trust account" means the total specific
funds deposited from all of a specific seller's contracts, plus
income on such funds allotted to that seller.
(18) "Specific trust funds" means funds identified with
a certain preneed cemetery company contract for personal
property, goods or services.
(19) "Trustee" means any natural person, partnership or
corporation, including any bank, trust company, broker-dealer,
foreign state charter trust, savings and loan association or
credit union which receives money in trust pursuant to any
agreement or contract made pursuant to the provisions of this
article

§35-5B-2. Information filing; fees,
compliance agent.

On or after the first day of July, one thousand nine hundred
ninety-three, no person, partnership, firm or corporation may
engage in the business of operating a cemetery company in this
state without having first paid an annual registration fee
established by the tax commissioner in an amount not to exceed
four hundred dollars, and filing with the tax commissioner
certain information which shall include the name and addresses of
all officers, owners and directors of the cemetery company and
the name of the designated compliance agent. The cemetery company
shall notify the tax commissioner of any changes in the
information required to be filed within ninety days of the date
on which the change occurs. A new filing shall also be required
if there is a change in the ownership of the cemetery company or
if there is a change in the name of the compliance agent
designated by the cemetery company. The cemetery company shall
pay an additional fee as established by the commissioner in
connection with the reporting of such changes, not to exceed one
hundred dollars. There is hereby created in the state treasury a
special account to be known as the "cemetery company
account" into which all fees collected under this article
shall be deposited: Provided, That amounts collected which
are found from time to time to exceed funds needed for the
purposes set forth in this article may be transferred to other
accounts or funds and redesignated for other purposes by
appropriation of the Legislature. Funds in this account shall be
expended upon appropriation of the Legislature by the secretary
of tax and revenue in connection with the administration of this
article.

§35-5B-3. Exemptions.

The provisions of this article do not apply to:
(1) Sales of property, goods and services subject to the
provisions of article fourteen, chapter forty-seven of this code;
(2) Sales of services by perpetual care cemeteries subject to the
provisions of article five-a of this chapter;
(3) Sales of property, goods and services by cemeteries owned and
operated by a county, municipal corporation, by a church or by a
nonstock corporation not operated for profit if the cemetery: (A)
Does not compensate any officer or director except for
reimbursement of reasonable expenses incurred in the performance
of official duties; (B) does not sell or construct or directly or
indirectly contract for the sale or construction of vaults or
lawn or mausoleum crypts; and (C) uses proceeds from the sale of
all graves and entombment rights for the sole purpose of
defraying the direct expenses of maintaining the cemetery;
(4) Sales of property, goods and services by community
cemeteries not operated for profit if the cemetery: (A) Does not
compensate any officer, owner or director except for
reimbursement of reasonable expenses incurred in the performance
of official duties; and (B) uses the proceeds from the sale of
the graves for the sole purpose of defraying the direct expenses
of maintaining its facilities; and
(5) Sales of property, goods and services by family cemeteries
wherein lots or spaces are not offered for public sale.

The board of directors of any such cemetery association shall
appoint a trustee, who shall be a responsible businessman or some
solvent federally insured banking institution, to act as such
trustee for a period of two years, or until his, or its,
successor is appointed. Such trustee shall be known as the
trustee of the permanent endowment fund of such cemetery
association, and shall immediately upon his, or its, appointment
and acceptance of the trust, give bond to the said cemetery
association, with some solvent and reliable bonding company
authorized to do business in this state, in a sum equal to the
amount which may come into the hands of such trustee, which bond
shall be increased or diminished from time to time so as always
to equal at least the amount of the trust funds in the hands of
such trustee; and the premium upon such bond shall be paid out of
the income of the trust funds in the trustee's hands and as part
of the cost of the administration of the trust fund. No trustee
appointed under this section shall enter upon the discharge of
his, or its, duties until such bond is given and approved by the
board of directors of such cemetery association: Provided, That
if the trustee so appointed by any such cemetery association be a
federally insured banking institution authorized and qualified to
exercise trust powers under and subject to the provisions of
article four, chapter thirty-one-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, it shall not be
required to give the bond hereinbefore provided, excepting and
unless required by the provisions of section eighteen, article
four, chapter thirty-one-a of said code. The board of directors
of such cemetery association shall allow such trustee, for
service as such, a negotiable, reasonable fee to be paid from
such trust funds. In the event of a vacancy in such trusteeship,
or failure of the board of directors of any such cemetery
association to appoint such trustee, after being requested so to
do by any stockholder of any such cemetery association, or its
successor, or any citizen interested, application may be made to
the circuit court of the county wherein such cemetery association
is located, and it shall be the duty of the circuit court of such
county to appoint a trustee, who, when so appointed and
qualified, shall have all the powers and perform all the duties
of such trustee as provided in this section.